Can a lawyer defend misdemeanor clients in a municipal court while also serving as that city's prosecutor pro tem?

Plain-English summary

The inquiry concerned possible conflicts in serving as a misdemeanor defense attorney in local municipal courts while also acting as prosecutor pro tem for two local courts, where the lawyer's representation is never in connection with a matter in which the lawyer participated personally and substantially as a public officer. The lawyer also asked whether there was any prohibition against representing a person with a civil rights claim against one of the same municipalities for which the lawyer occasionally serves as prosecutor.

The committee concluded the conduct is not controlled by RPC 1.11, whose purpose is to control a lawyer who has left public service for private practice. Because the lawyer intermittently represents the city as its prosecutor and expects to continue, the lawyer must consider the city a client, so the conduct is controlled by RPC 1.7. Under those provisions, it is a conflict of interest to represent criminal defendants in a municipal court where the lawyer is intermittently employed as a prosecutor, but the conflict can be waived if the lawyer complies with RPC 1.7(a)(1) and (2). Assuming the lawyer could satisfy the same provisions, the lawyer could also represent the former client in her civil suit against the city; depending on the facts, however, there will be unwaivable conflicts of interest under RPC 1.7(a) and (b) and 1.6.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's cited rules correspond to ABA Model Rules 1.6 (confidentiality), 1.7 (conflicts of interest), and 1.11 (special conflicts for government officers and employees).

Common questions

Q: Does RPC 1.11 govern a part-time prosecutor who also does defense work?

A: No. The committee concluded RPC 1.11 does not control, because its purpose is to govern a lawyer who has left public service for private practice.

Q: Why does RPC 1.7 apply, and is the conflict waivable?

A: Because the lawyer intermittently serves as the city's prosecutor and expects to continue, the committee said the city is a client, so RPC 1.7 governs; the conflict of defending criminal clients in that court can be waived by complying with RPC 1.7(a)(1) and (2).

Q: Can the lawyer represent a client suing the city?

A: The committee said the lawyer could if the same provisions are satisfied, but that depending on the facts there will be unwaivable conflicts under RPC 1.7(a) and (b) and 1.6.

Background and rules framework

The opinion applied RPC 1.7(a) and (b) (conflicts of interest, corresponding to ABA Model Rule 1.7) and RPC 1.6 (confidentiality, corresponding to ABA Model Rule 1.6), and distinguished RPC 1.11 (special conflicts for former government lawyers, corresponding to ABA Model Rule 1.11), to a lawyer who is intermittently a city prosecutor and also a defense lawyer. The committee's pivot was that the ongoing prosecutor role makes the city a current client, moving the analysis from RPC 1.11 to RPC 1.7 and its consent conditions.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality); Washington RPC 1.6
• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7(a), 1.7(b)
• ABA Model Rule 1.11 (special conflicts for government officers and employees); Washington RPC 1.11

See also

• WA Ethics Op. 1755: Prosecuting and Suing the Same Person
• WA Ethics Op. 1746: Switching Prosecution and Defense

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=830

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1766
Year Issued: 1997
RPC(s): RPC 1.6; 1.7(a); 1.7(b); 1.11
Subject: Conflict of interest; lawyer represents criminal defendants and serves as prosecutor pro tem in same court

[The inquiry concerned] possible conflicts of interest in serving as a misdemeanor defense attorney in local municipal courts while also acting as prosecutor pro tem for two local courts. Your representation is never "in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee". You also ask whether or not there is any prohibition against your representation of a person who has a civil rights claim against one of these same municipalities for which you occasionally serve as prosecutor.

It was the Committee's opinion that your conduct is not controlled by RPC 1.11. The purpose of that rule is to control the conduct of a lawyer who has left public service for private practice. Because you intermittently represent the city as its prosecutor and have the expectation of continuing to do so, you must consider the city to be your client. Consequently, your conduct is controlled by RPC 1.7. Under those provisions, it is a conflict of interest to represent criminal defendants in a municipal court where you are intermittently employed as a prosecutor. However, the conflict can be waived if you comply with the provisions of RPC 1.7(a)(1) and (2). Assuming you could satisfy the same provisions, you could also represent your former client in her civil suit against the city. Depending on the facts of the case, there will be unwaivable conflicts of interest under RPC 1.7(a) and (b) and 1.6.